Internal needs and commercialization

As part of the concept of their indigenous communities’ exclusive usufruct rights, one must, however, establish a distinction between the use of natural resources to meet the internal needs of an indigenous community, according to their uses, customs and traditions, and the products that exceed these needs for commercialization, and sale, even for the purpose of the subsistence of these communities. Regarding this distinction, Carlos Frederico Marés de Souza Filho (in "O Renascer dos Povos para o Direito") makes the following comments:

"The indigenous communities' usufruct rights and activities, according to their uses, customs and traditions, imply the possibility, without restrictions, of using the products, assets and resources of their lands. In the light of the above, the indigenous peoples may farm, set up villages, extract wood and food for the use of the community without any restriction because any such restrictions imposed administratively or by law imply unconstitutionality.”

On the other hand, the indigenous people produce products in excess of their needs, which they sell or commercialize for the purchase of goods and services, which they do not have internally, that is on their lands. The extraction of these products in excess of their needs should be oriented in accordance with national legal standards of environmental protection taking into consideration the general norms applicable in these situations. In this light, hunting may only be permitted for their internal consumption. If they plan to sell the meat from their hunting activities, they should have a structure to raise the animals of the hunt and this structure should be registered with and authorized by the appropriate authorities; they may only sell lumber or minerals extracted in accordance with the regulations previously established for these purposes, but they may plant products and set up villages in areas considered permanent preservation."

In other words, the traditional activities of indigenous communities, for their own subsistence or internal consumption, are not subject to any restriction nor are they conditioned by any authorization of any governmental entity. But the activities of commercial exploration of natural resources depend on complying with and fulfilling the requirements of specific legal norms, including applicable environmental norms.

The exclusive usufruct rights which the indigenous communities possess over the natural resources of their lands are not obstacles that impede these same indigenous communities from associating with, setting up partnerships with, or being advised or counseled by third parties in the elaboration, preparation and development of economic projects on their lands, as long as these indigenous communities do not transfer title or ownership of these projects or programs or the results of these programs, and definitively do not transfer or place a lien on the use or fruits of their natural resources.